Over the last decades, a number of initiatives taken by various US administrations on both sides of the aisle have raised concerns about the actual legality of the extraterritoriality attached to laws imposed by the United States of America on other jurisdictions around the world, often using “persuasion” rather than legal due process.
In my first course on International Private Law at the Catholic University of Louvain, we were taught that tax laws could not extend beyond the borders of the taxation authorities. The territoriality of tax laws is confirmed by the literature. The double taxation treaties confirm this principle … Read more
China now has the second-largest number of Fortune Global 500 companies in the world. Most of the Chinese companies on the list are state-owned enterprises (sometimes called “SOEs”) organized into massive corporate groups with a central government agency as their ultimate controlling shareholder. Despite these groups’ importance to China’s domestic economy and foreign investment strategy, many features of the SOE sector—particularly the organizational structure and governance characteristics of the SOE groups—remain a black box.
Unpacking the black box requires moving away from the standard focus on agency costs in listed firms that predominates in the corporate governance literature. Instead, in … Read more
The following post comes to us from Professor Mariana Pargendler of the Fundação Getulio Vargas School of Law at São Paulo, Brazil.
Despite prior waves of privatization, state-owned enterprises (SOEs) remain a fixture of the variety of capitalism embraced by Brazil, Russia, India, and China as well as other emerging and developed economies. The state, however, is too often not alone in the companies it controls. Minority shareholdings in government-controlled firms are pervasive around the globe, and have been on the rise in a number of jurisdictions. As of 2010, publicly traded SOEs accounted for a startling one-fifth of the … Read more
In our new paper, The Present and Future of Corporate Governance: Re-Examining the Role of the Board of Directors and Investor Relations in Listed Companies, forthcoming in the European Company and Financial Law Review, we contribute a new perspective on corporate governance by examining the ‘ignored’ third dimension of the corporate governance debate: the prospect of business growth and value creation. A three-dimensional approach provides a better understanding of the dynamics of the corporate governance practices that we currently observe in listed corporations. Our analysis is supported by empirical evidence, derived from two hand-collected data sets, that consist … Read more
In recent years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have aggressively investigated and enforced both the anti-bribery and accounting provisions of the Foreign Corrupt Practices Act (FCPA). Many of these matters have been the result of “industry sweeps,” which have included the oil and gas, pharmaceutical and medical device, and telecommunication industries.
DOJ and the SEC have also made clear that the banking and finance industry is a high priority for FCPA enforcement. In January 2011, the SEC initiated investigations into bank and private equity firm transactions involving sovereign wealth funds, national pension funds, … Read more
The “European Market Infrastructure Regulation,” known as EMIR, was adopted on July 4, 2012, as the Regulation on OTC Derivatives, Central Counterparties and Trade Repositories (EU 648/2012), and took effect in all EU Member States on August 16, 2012. As an EU Regulation, EMIR is effective in EU Member States without the need for national regulations or legislation.
The EMIR regulatory framework is made up of Regulation EU 648/2012 (the “Regulation”) and several European Commission Implementing Regulations and Delegated Regulations which set out technical standards addressing matters of detail under the Regulation. The Implementing Regulations and Delegated Regulations were published … Read more
Earlier this week, the SEC announced that it had entered into a non-prosecution agreement (NPA) with Ralph Lauren Corporation to resolve an investigation under the Foreign Corrupt Practices Act (FCPA). While the Department of Justice also announced that it had entered into an NPA with Ralph Lauren, it is the SEC agreement that is most notable. This agreement, only the fourth publicly reported NPA that the SEC has entered since it announced that it would begin using such agreements – and the first such agreement in an FCPA case – illustrates the potential benefits of cooperation.
The SEC’s press release … Read more
Editors Note: The author, a partner at Wachtell, Lipton, Rosen & Katz argued the Morrison case for the defendants in the Supreme Court.
Just as it extinguished class-action litigation tourism under the Securities Exchange Act three years ago in Morrison v. National Australia Bank, the U.S. Supreme Court, invoking Morrison, today abruptly ended the burgeoning use of the Alien Tort Statute to litigate extraterritorial torts. Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Apr. 17, 2013).
Enacted in 1789, the ATS provides that federal district courts have “jurisdiction of any civil action by an alien for … Read more
Commissioner Walter delivered the below remarks on March 24, 2013 to the Australian Securities and Investments Commission Forum (via videoconference)
Good morning. Thank you, Greg [ASIC Chairman Greg Medcraft] for that kind introduction.
It is a real pleasure to be able to join you today — although I very much regret that I am not with you in person. I appreciate Greg’s graciousness in allowing me to present my remarks by video. The Australian Securities and Investments Commission and Greg himself have been wonderful partners in our many global ventures and that deepens my regret at not being in Australia … Read more
Traditionally, the view of the US, whether in business or academia, has been that it was a place for weak private enforcement and stronger public enforcement. However, when compared with the level of public enforcement in the European Member States, even in the UK and in France, the US Securities and Exchange Commission has a stronger track record.
This picture is going to change dramatically, thanks to the proposed revisions in October 2011 of the European Union’s 2003 Market Abuse Directive (MAD), which deals with insider trading, market manipulation, and ad hoc disclosure.
The two proposals introduced were the Market … Read more
“Ring-fencing” is often touted as a potential regulatory solution to problems in banking, finance, public utilities, and insurance. However, both the precise meaning of ring-fencing, as well as the nature of the problems that ring-fencing regulation purports to solve, are ill defined. My new article, recently posted here on SSRN, examines the functions and conceptual foundations of ring-fencing.
The recent report by the U.K. Independent Commission on Banking (known as the “Vickers Report”) proposes ring-fencing banks by legally separating certain of their risky assets from their retail banking operations. Federal regulators in the United States are considering requiring the … Read more
In the turmoil created by the decision of the Cyprus Government to impose a 6.75% levy on deposits up to 100,000 euros and 9% above, it might be useful to look at the legal aspects of this decision. The issue of a guarantee scheme for deposits is not new, and even Cyprus established such a scheme in 2000. This posts walks through the relevant European and Cypriot regulation. I argue that there is no precedent for Cyprus’ levy and that it creates a serious risk of contagion.
On July 12, 2010, the European Commission adopted a legislative proposal … Read more
More and more companies appear with strange abbreviations behind their business name. Consider Chrysler Group LLC (instead of Inc.) or LVMH Montres & Joaillerie France SAS. Some even speak about the “endangered corporate form” and point to the rise of the uncorporation. In the paper, “A Primer on the Uncorporation, ” Erik Vermeulen, Priyanka Priydershini and I examine how the uncorporation has evolved in the United States and, more recently, in other economies around the world. The growth in non-listed business forms in Europe, Latin America and Asia has been shaped by a mixture of learning and professional advice arising … Read more
My paper, Regulatory Competition and Anticorruption Law, which was recently published in the Virginia Journal of International Law, responds to arguments that the recent increase in European enforcement of anti-bribery laws has created a risk of overenforcement. Critics of the current international regime, including the U.S. Chamber of Commerce and several academics, have argued that cracking down on bribery of government officials by rich-world firms will leave the field open to multinationals whose home countries do not care about corruption (China and India typically are mentioned). These critics would have the United States relax its international bribery rules by … Read more
In 2011, the Deutsche Boerse Group launched an offer on the New York Stock Exchange. Everybody expected that the U.S. authorities would object to this foreign acquisition of the most iconic Stock Exchange in the United States, and arguably in the world. Not only did it not happen, but very quickly the U.S. Department of Justice, quite naturally, concluded that there was no antitrust issue. Incidentally, NASDAQ made a desperate attempt to purchase the NYSE for $11.8 billion and the merger of the two largest cash equity exchanges of the United States was stiffly rejected by the U.S. authorities. Even … Read more
Not all jurisdictions around the world suffered the effects of the so-called “global” financial crisis equally. Even among common law countries, which are routinely bundled together in much academic literature, the impact of the crisis varied significantly from jurisdiction to jurisdiction.
The crisis proved dire for some common law countries, such as the United States and the United Kingdom. Others, however, including Australia and Canada, were considerably more fortunate. Although there were over fifty government-sponsored bank bailouts around the globe during the crisis, including in the United States and the United Kingdom, there were no such bailouts in either Australia … Read more
The year 2013 is likely to be a watershed time in the development of shadow banking oversight and regulation. Of particular note are three upcoming developments: (1) the Financial Stability Board (the FSB) has commenced public consultations on its initial proposals and final recommendations are scheduled to be released in September 2013; (2) the USA will soon begin designating its first nonbank Systemically Important Financial Institutions (SIFIs), and will clarify its plans for regulating such entities in practice; and (3) the European Systemic Risk Board is preparing to recommend shadow banking oversight changes in early 2013. It is therefore an … Read more
The humbling of two global banks in recent weeks has been greeted very differently on opposite sides of the Atlantic. Still, from the perspective of either side, large fines for interest rate rigging by Swiss bank UBS, and money-laundering by HSBC, point to the same conclusion: from now on, banks must protect their reputations as their most valuable asset.
On the US side, there has been considerable grumbling about the “lenient” treatment meted out to HSBC and UBS. Associations with Mexican drug cartels and Iranian militants or documented solicitation of price fixing usually attract the attention of federal prosecutors. Yet, … Read more
In 2002, the UK began requiring an advisory shareholder vote on the annual executive and non-executive director compensation practices of UK-incorporated quoted companies (“UK Companies”). Eight years later, in July 2010, the US followed suit when President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), providing for an advisory say-on-pay vote for most large US public companies.
The UK government has now gone one step further by proposing to reform the approval process for director remuneration, including through the introduction of a binding shareholder vote for all UK Companies that must occur … Read more